Author: Pedro Sousa Uva*
Published: December 2010
Independence and Impartiality
Appeal to Arbitral Tribunal and Annulment
“[The review on the merits is, whatever euphemistic phraseology is used, in reality an appeal from the decision of the arbitrator or arbitration tribunal. This raises a general question of principle: has a person involved in a legal dispute a fundamental right to a second shot if the first shot has misfired?”
I. INTRODUCTION: THE REQUEST FOR ANNULMENT OF AN AWARD VIS-À-VIS THE FINALITY OF INTERNATIONAL ARBITRATION
When a party looses a battle in litigation, the war is usually far from being lost. An unhappy party may, as a rule, appeal an unfavorable judicial decision in more than one instance. In many countries, such a party may continue appealing on certain grounds and even request review by higher (specialized) judicial courts, notably the Constitutional Court or even the European Court of Justice. Before a judicial decision has res judicata effect, a party may well litigate for several years, alleging or counter-alleging until potentially reaching voluntary compliance or the enforcement stage.
When a party loses a battle in arbitration, the scenario is not quite the same. In international arbitration, there is, as a rule, no appeal on the merits. The ratio legis is simple to understand: arbitration is of a contractual nature as it relies on the consent of the parties. It is supposed to be a previously agreed forum for dispute resolution in a swift way, guided by the laws and rules expressly chosen by the parties, which are usually referred to in the arbitration agreement. Judicial review of the merits of an international award would clash with the voluntary, neutral forum established to decide in accordance with the parties’ chosen rules and law(s).
*Graduate of the Portuguese Catholic University of Lisbon Law School; LL.M, Queen Mary University of London, School of Law; Attorney at Law in Portugal, specializing in national and international dispute resolution. This article is adapted from the author’s LL.M dissertation at Queen Mary University of London, School of Law.